The hardest word: saying sorry matters

20 July 2018 | Paul Tsaousidis BA, LLB, Head of Practice – Legal, Avant Law, NSW

Every doctor will face situations where treatment doesn’t go as well as planned, whether it’s an inherent risk or an error of some kind. How the adverse event is handled can make a big difference to the impact for the patient and the treating team.

Civil compensation claims are often in part the result of poor communication, insensitive handling or a delay in providing details of an adverse clinical incident. There are usually other motivating factors, such as a perceived injustice, significant adverse outcome or financial hardship which drive compensation claims, but not open disclosure.

So it doesn’t mean you are going to get sued as a result of something you said during the process. Avant’s position, in accordance with the Australian Open Disclosure Framework, is that an apology is not intended to be, and should not be seen as, an admission of liability or a statement casting blame on some other person or organisation. It is simply the right thing to do for the patient.

Lack of honesty costs $600k

In a well-publicised case we noted, a patient was experiencing lower back pain due to a disc protrusion between the third and fourth lumbar vertebrae, which impinged on the fourth lumbar nerve on the left. A laminectomy and discography was performed which was intended to be at the L3-4 level, however the surgeon conducted the operation on the wrong disc at the L4-5 level, which was only discovered by subsequent imaging.

Following the procedure, the patient continued to experience back pain that was worse than before. However, the patient was not informed of the mistake by the surgeon, who altered the operation report to indicate he had operated at the L4-5 level. The surgeon then also changed the pre-operative diagnosis to make it appear there was a problem at L4-5 level when there wasn’t.

Consent was then obtained from the patient by the surgeon, for a further operation at the L3-4 level, which should have been carried out in the first place. After this operation the site became infected and the patient was hospitalised. The area was re-opened and drained but the back pain did not go away and further imaging confirmed the presence of arachnoiditis.

The patient sued the surgeon for damages as a result of the back operation. The case went to court and heard before a judge.

In addition to negligence, the surgeon faced a claim of battery for not having proper consent, as consent obtained earlier for the second operation was nullified by the surgeon’s lack of candour in obtaining it for this procedure. As a consequence the judge ordered the surgeon to pay over $400k in damages, which was increased on appeal to be in excess of $600k.

This is an extreme case but it exemplifies how things could have been different if the surgeon had advised the patient that the operation had been performed at the wrong level, as soon as this error became known.

A lapse in the standard of care may be the failure to recognise the adverse event, to act appropriately to rectify the problem, or explaining to a patient what has happened and any anticipated short-term and long-term consequences. Open disclosure is simply providing information to patients, but can also be a legal obligation when a patient has suffered an injury as a result of their medical treatment. It is also an ethical requirement enshrined in the Medical Board of Australia’s Code of Conduct, which states, ‘When adverse events occur, you have a responsibility to be open and honest in your communication with your patient’. However failure to engage in open disclosure may also have legal implications.

The best time to engage in open disclosure is when the patient is suitably fit to understand the information conveyed to them. Often patients do not fully comprehend what is being said. They may come back later asking the same questions, or making a complaint in order to elicit information as to what occurred. Medical practitioners should not be put off by this possibility.

Colonoscopy complications

Brooke Clark, BA, Claims Manager, NSW

Undertaking open disclosure discussions is the right thing to do, even though it may not guarantee avoiding a complaint. The failure to do so isn’t just an ethical issue but has legal and financial implications. Avant Law recently assisted a member in response to a complaint, despite open disclosure having taken place with a patient.

The patient underwent a colonoscopy, which the doctor said proceeded normally with no apparent complications. Nurses monitored the patient post-operatively, but the patient slowly declined. They had low blood pressure thought to be due to the anaesthetic. When the patient continued to deteriorate the treating team assessed the patient and decided the failure to recover was due to a surgical complication. The endoscopist suspected it could be a rare complication and ordered an urgent CT scan of the abdomen. The CT scan indicated intra-abdominal fluids and they started transfusing the patient straight away and undertook surgery to arrest the bleeding.

Apology not enough

The family was kept informed throughout the procedure and once the patient was fit, the endoscopist apologised to the patient and the family for the complication. This was documented and he sought to follow up the patient’s progress following discharge. While the patient recovered, there was lasting injury and a complaint was made to a complaints body. The patient’s primary complaint was they felt they had not been given an adequate explanation of what went wrong.

Responding to the complaint

Avant assisted the endoscopist to respond to the complaint and clearly demonstrated that he had delivered the expected standard of care, and open disclosure about the adverse event had occurred. The endoscopist also permitted his response to the regulator to be passed onto the patient to assist their understanding of what had transpired.

Based on the evidence and response provided, the complaints body discontinued dealing with the complaint.

Case comment

Michael Swan BN, LLB, Senior Solicitor, Avant Law, NSW

All jurisdictions in Australia have ‘apology’ laws that protect statements of apology or regret made after incidents, so they can’t be used as evidence of an admission of guilt. This protective legislation aims to create an environment where doctors can feel comfortable expressing regret to patients.

Open disclosure is defined as an ethical obligation to be open and honest in your doctor-patient relationships. Our experience is that open disclosure in itself rarely leads to claims for compensation. However, claims can arise when the process is not handled by experienced practitioners with first-hand knowledge of the incident, or when patients or their families perceive a communication problem has occurred during the process.


  • supports open disclosure by its members in accordance with the Australian Open Disclosure Framework
  • assists members to undertake an open disclosure process with patients and will provide advice, information, and support during what can be a stressful and difficult time
  • encourages members to seek early advice and support during this process
  • offers guidance to members to provide apologies to patients who have suffered
  • an adverse outcome from treatment.

Key lessons

The open disclosure discussion is probably one of the most difficult conversations a doctor can have with a patient or a patient’s family. Usually they occur because a patient has suffered an adverse event, sometimes death, and that event is sometimes because of a medical error. It is not only a legal requirement to disclose but an ethical one that’s part of a doctor’s duty of care.

Like all difficult conversation, it is best to think about what you want to say and how you might say it. These discussions are emotional and often unpredictable and the events can leave doctors feeling devastated. Effective communication is the most important part of a successful open disclosure discussion with patients.

Tips for discussions:

  • Ensure the patient is suitably fit to understand the information conveyed.
  • Take stock of your emotions.
  • Think about the patient’s or family’s expectations.
  • Consider how they might feel about the information they are being given.
  • Prepare yourself for tears, anger, threats, aggression and silence.
  • Practise the words you might use.
  • For junior doctors, always discuss it with a more experienced doctor beforehand.

*All names in the case studies have been changed.

This article was originally published in Connect issue no. 9

More information

Download our factsheets Responding to a direct patient complaint and Open disclosure: how to say sorry.

Complete our eLearning course, Open disclosure.

If you have received a complaint, contact our MLAS on 1800 128 268 for expert advice on how to respond, available 24/7 in emergencies.

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